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If you are the victim of a crime, you want the person who hurt you or took your property to spend the maximum number of days in jail or prison, to pay every dollar of their fine, and to repay you ever penny of restitution you have coming. Cops and the public pretty much feel the same way.

On the other hand, if you have violated some law and been charged with a crime, or multiple crimes, you may want your lawyer to negotiate some kind of plea agreement so you get sentenced to something less than the maximum penalty.

That's why you want me, an experienced criminal attorney, who has been involved in thousands of plea bargains on both sides of the equation, as a prosecutor and as a defense attorney. I know how this game is played and if some kind of deal is possible, I'll do my best to get it for you.

There are two things you should know about plea bargaining.

1. The majority of criminal cases are disposed of by way of a plea bargain. That's right. Of all the criminal cases initiated across America every year, only about 5% go to trial. The same is true for civil cases where they call the agreement a "settlement."

Why is that? Here are a few of the reasons.

Depending on the prosecutorial agency, each one issues thousands to tens of thousands of cases every year. It's impossible for them all to go to trial so they are pled out to something less than the original charge or less than the maximum penalty.

Trials are expensive. They tie up a judge and court staff, at least two lawyers, multiple witnesses, and 12 reluctant jurors for long or short periods of time when they could all be doing something more productive. Still, you are entitled to a jury trial and if you insist on one or I advise you a trial is your best chance of gaining your freedom, then a jury trial you will have.

A bird in the hand is worth two in the bush. In other words, the prosecutor often prefers a guaranteed plea of guilty to something less the original charge, rather than risking a jury finding you not guilty which means they end of with nothing.

Something may have happened that has affected the strength of the prosecution's case and they want to dump the problem with a quick plea bargain.

2. The prosecutor has the total power to decide if you are going to be charged with a crime, what crime or crimes it will be, and how many counts of each offense there are. For the same reason, the prosecutor gets to decide if there will even be a plea bargain offered and how low they are willing to negotiate to get a guilty plea.

This is another reason you want someone like me to represent you, a defense attorney with 14 years of experience as a prosecutor who knows how the prosecution thinks and how far they might be willing to be pushed in a plea negotiation.

Different Kinds of Plea Bargaining

There are three kinds of plea bargaining. Count bargaining, charge bargaining, and sentence bargaining. Here's how they differ.

Count bargaining, is often used in cases where the different counts are the same type of crime or have the same basic sentencing range. For example, let's say someone got drunk and went on a vandalism rampage, busting the windshields of ten cars. Each car counts as an individual crime, or a separate "count." A typical plea bargain would be to plead "one for one." In other words, for every count to which the defendant pled guilty, another count would be dismissed. Of course, the defendant would still have to make restitution to all ten victims. And even though the defendant's record would only show a conviction on five counts, the judge would be able to consider the dismissed counts during sentencing.

What if the number of crimes is an odd number, for example, five counts of commercial burglary? A prosecutor would likely offer "plead to three, dismiss two." Understand, the prosecution is not going to give away more than they get and, as I said above, they are in the driver's seat on plea bargaining.

In charge bargaining, it is the charges themselves that are negotiated rather than the number of counts. In this type of deal, the prosecutor is going to rely more heavily on other factors, e.g. defendant's record or lack of criminal convictions, age of the victim, if a weapon was used, the criminal sophistication involved, to name a few.

Let's say the original charge was a strong arm robbery but the prosecutor has discovered weaknesses in the case. Maybe the victim has become uncooperative. The prosecutor might offer a plea to a lesser included offense of grand theft.

For a variety of reasons, there might be an offer to plead to a "lesser related offense." Other examples: plead to misdemeanor "joyriding" instead of felonious "taking and using a car without permission;" or non-priorable reckless driving with alcohol instead of the heavy penalties attached to driving under the influence of alcohol.

Unlike the other two, sentence bargaining is the one controlled by the court. Oh sure, the prosecutor and I will sit down and hash out something agreeable to both sides and the judge usually goes along with it, figuring if both parties like it why should he or she stand in the way. But it is known to happen where the judge says, "Considering the severity of the crime, I don't find that an acceptable bargain. Come up with something better (i.e. worse for the defendant) or set it for trial."

Lucky for the defense bar, if not necessarily for the general public, laws passed by initiative or by the legislature have greatly diminished the prosecutor's ability to use sentence bargaining. And a proposed ballot initiative could drastically change additional sentencing laws to the benefit of convicted felons. Needless to say, prosecutors are not happy about it.

So now you understand, the prosecutor will make an offer for plea bargain. The defense attorney sometimes only gets once chance at a counter-offer. It depends on the prosecutor handling the negotiation. Some are more open to give-and-take than others.

As much as you may want to be there, defendants aren't present for the bargaining. That is why you need someone looking out for your interests. Why do you think major league athletes have sports agents, and people buying or selling a house use real estate agents? They want a representative who is familiar with the industry and how far the other side can be pushed.

Again, that's why you need an experienced criminal defense attorney and former prosecutor like me working to get you the best deal. Call me, Attorney Rebecca Ocain, at 619-431-1076.

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